The objective of this Directive is to facilitate the circulation of defence-related products within the European Union. To achieve this, it simplifies and harmonises national licensing procedures by promoting a streamlined system of global and general licences in which the granting of the most constraining licences – individual licences – will be exceptional.

ACT

Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community (Text with EEA relevance) [See amending act(s)].

SUMMARY

The aim of this Directive is to facilitate the transfer of defence-related products within the European Union (EU) and to improve the competitiveness of the defence sector in Europe and industrial cooperation between the Member States.

This Directive establishes a European authorisation system based on issuing transfer licences to suppliers. This system increases the transparency and security of transfers in the EU. It also facilitates the purchasing, maintenance and repair of European defence products.

This Directive applies to the defence-related products stated on a list annexed to the Directive. The Commission updates the list regularly so that it strictly corresponds to the Common Military List of the European Union.

Transfer licences

The Directive makes the transfer of defence-related products subject to prior authorisation from the Member State from whose territory the defence products are to be transferred.

The Directive states that no other authorisation from other Member States is required for transit through Member States or entry to the territory of the Member State where the recipient of the defence-related products is located, except on grounds of public security or public policy, for example in the area of safety of transport.

There are three types of transfer licences:

general licences;

global licences;

individual licences.

General licences are published by Member States and are addressed to all suppliers established within their territory who comply with the conditions of the general licence. With these licences, suppliers can carry out several transfers of defence-related products to one or several categories of recipients situated in another Member State.

The Directive specifies the cases which must at least have a general licence: transfers to certified companies, transfers to the armed forces of other Member States, transfers for demonstration, evaluation or exhibition purposes and transfers for maintenance and repair purposes.

This type of licence may also cover transfers relating to an intergovernmental cooperation programme.

Global licences are issued to individual suppliers on their request. On the basis of this request from the supplier, Member States determine the scope of the global licence, its duration (three years, renewable) and the authorised recipients.

Individual licences are also issued at the supplier’s request. They are limited to a single transfer of products to a single recipient. They are permitted by the Directive in four cases only:

if the request is limited to a single transfer;

if it is necessary for the protection of the essential security interests of the Member State or on grounds of public policy;

if it is necessary for compliance with international obligations and commitments of Member States;

if there is serious reason to believe that the supplier will not be able to comply with all the terms and conditions necessary to grant it a global transfer licence.

Information obligations of suppliers

Member States ensure that suppliers of defence-related products:

inform recipients of the terms and conditions relating to the end-use of the transfer licence;

inform the competent authorities of the Member State from whose territory they wish to transfer defence-related products of their intention to use a general licence for the first time;

keep detailed records of their transfers.

Certification of recipients

The Directive establishes a certification system of recipients. This system aims at establishing the ability of recipients to comply with the safety rules relating to the particular nature of products in the field of defence.

Member States designate authorities to carry out the certification of recipients established within their respective territories. The certification is drawn up according to the following criteria:

proven experience and reputation in defence activities;

relevant industrial activity in defence-related products within the EU;

appointment by the company of a senior person responsible for transfers and exports;

written commitment of the company to observe and enforce the conditions related to end-use and export of received components or products;

written commitment of the company to provide the authorities with the information requested concerning the end-users or end-use of products exported, transferred or received under a transfer licence from another Member State by the company;

a signed description of the internal compliance programme or the export management system implemented in the company.

Valid for a maximum period of five years, the certificate mentions the name of the issuing authority, the name and address of the recipient, its date of issue and period of validity and a statement that the recipient complies with the requirements. The Directive requires Member States to recognise certificates issued in accordance with the Directive by other Member States.

Member States publish und update regularly the list of certified undertakings and forwards the information to the other Member States and the Commission, which then makes it publicly available on its website.

If a Member State considers that there is a serious risk that any certified recipient in another Member State will not respect any condition attached to a general transfer licence, it informs the Member State which issued the certificate and requests evaluation of the situation. If doubts remain, it can suspend the transfer licence, informing the other Member States and the Commission.

Moreover, Commission Recommendation 2011/24/EU on the certification of defence undertakings gives practical advice to Member States for implementing this system of certification.

Background

The transfer of defence-related products within the EU was subject to 27 national licensing systems which differed greatly in terms of procedures, scope and time taken to obtain licences. This diversity adversely affected both the competitiveness of European defence undertakings and the establishment of a genuine European market in defence products. Moreover, the constraints associated with the obtaining of licences in the EU appeared excessive compared with the real control needs in so far as thousands of requests for licences are lodged every year while none is refused.

Commission Directive 2012/10/EU of 22 March 2012 amending Directive 2009/43/EC of the European Parliament and of the Council as regards the list of defence-related products [OJ L 85 - 24.3.2012]: the Directive updates Directive 2009/43/EC on the conditions of transfers of defence-related products within the Community, following the adoption by the Council of a common list of European Union military equipment on February 21, 2011. Member States must transpose the Directive by 24 June 2012 at the latest.